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Legal Pleadings:

Reply Brief – Free Speech

RESPONSE AND REBUTTAL TO
STATEMENT OF THE CASE AND FACTS BY STATE

A. State’s Position
Appellant notes the State “accepts the Appellant’s facts and procedural history.” Answer Brief at 5. The State thereupon alleges additional facts, many of which are unsupported (and in some cases, contradicted) by the record, contrary to the requirements of Rule 9.210(b)(3), Fla. R. App. P. These facts, discussed seriatum, below, should be disregarded, per rule.

B. Statement of the Facts by State – Unsupported/Contradicted by Record
The State, without citation, claims that the Appellant, “at various times, leaned in towards the parking entrance and held his phone out over the entrance.” Answer Brief at 6. This unsupported claim gives the mis-impression that the Appellant, in some fashion, actually entered the judge’s garage with some part of his body. In fact, at all times, relevant, as cited in the Initial Brief and accepted by the State, the Appellant was standing on a public sidewalk. RIII at 120. See also RIII at 143, 147. Officer P. was at his standard duty post, in the judge’s garage. See, e.g. RII at 174.
The State next claims the Appellant made comments that included “threatening statements.” Answer Brief at 6. This is entirely inaccurate. In fact, as agreed to by the State, no threat was ever uttered by the Appellant. The portion of the record cited by State (RIII at 125-127) contains no facts to support this allegation. It should be disregarded.

The State next claims that, after Lt. B. arrived, and the Appellant broke off his consensual encounter, and began to walk away (as ordered), he was “told to stop and informed he was under arrest.” Answer Brief at 7. This is incomplete, inaccurate, and misleading. The record clearly shows that when the Appellant obeyed the instruction (given without lawful authority) to leave, and walked away, he was pursued by Officer P. and Lt. B. (leaving Officer C. responsible for the garage), and was he told he was under arrest only after they caught and detained him. R. III at 173.
Finally, as to the balance of page 7, the factual allegations therein are without a single record citation. They should be disregarded, as violative of Rule 9.210(b)(3), Fla. R. App. P. The issue of the receipt of the partial transcript of the Violation of Probation hearing is thoroughly discussed in the Initial Brief, and accepted by the State as accurate. It reads, in relevant part:
It is undisputed that, at approximately 8:14 am, on the morning of December 15, at the hearing on the continuance, and on the morning of trial, the State, for the first time, and some six days after it was requested, provided a partial transcript of the violation of probation hearing.
Initial Brief at 6.

RESPONSE TO AND REBUTTAL OF STATE’S ARGUMENT
ISSUE I – The Trial Court Erred by Denying the Motion for Judgment of Acquittal

A. Introduction
The State’s argument as to Issue I can be fairly summarized as follows: (1) Officer P. was engaged in the performance of a lawful duty at all times relevant; and (2) the Appellant’s conduct, consisting solely of walking back in forth on the sidewalk in front of the entrance to the judge’s garage, obstructed the performance of that lawful duty. No relevant case law is offered refuting the holding in D.G. v. State, 661 So.2d 75, 76 (Fla. 2d DCA 1995), “distinguish[ing] between a police officer ‘in the lawful execution of any legal duty’ and a police officer who is merely on the job.” Id., emphasis added. The State essentially admits the Appellant’s offensive speech could not and did not amount to obstruction, but mis-characterizing his speech as conduct, it thereby attempts to distinguish it through inappositive case law.

B. Rebuttal
1. Officer P. Was NOT Engaged in a Lawful Duty as Defined by Law
A “lawful duty,” under §843.02, Fla. Stat., exists when a police officer is: 1) executing process; 2) legally detaining an individual; or 3) asking a citizen for assistance with an ongoing emergency presenting a serious threat of imminent harm to persons or property. D.G., supra at 76. This is distinguished from merely “being on the job,” as Officer P. clearly was. Id. It is undisputed that neither definition one or three is applicable here. The remaining issue, therefore, is whether the Appellant was legally detained at the time of the subject behavior.

First, it is clear that the alleged obstruction had to have taken place while the Appellant was lawfully on the sidewalk, in front of the garage. The State posits that the Appellant was yelling at Officer P., and blocking his view. See, e.g. Answer Brief at 15. This they say (in error, see Section B.2., below) amounts to speech plus conduct, and it is the latter element – conduct in the form of blocking the officer’s view – that amounted to the statutorily proscribed obstruction.

It cannot be said that the Appellant was blocking Officer P.’s view when he complied with the instruction to leave, and walked away. It is also absolutely clear that the Appellant was not being legally detained when he was standing in front of the garage, yelling and filming. Thus, since, at the time of the alleged conduct giving rise to the instant conviction, the Appellant was not being legally detained, the second possible “lawful duty,” a legal detainer, is also absent. The JOA motion was denied in error.

The two authorities cited by the State claiming the contrary are factually inapplicable. The first case cited by the State is N.H. v. State, 890 So.2d 514 (3d DCA 2005). In N.H., the police were investigating a female’s loud yell, coming from a high school parking lot. Id. at 515. Their first sight of the defendant was when he was observed running away from the scene, and gave chase. Id. The defendant continued to flee, tried to evade the officers, and was uncooperative and threatening when they finally caught up with him. Id. at 515-16. Holding that the police were lawfully attempting to conduct a Terry stop, because they “had a reasonable suspicion that criminal activity was afoot,” the “investigatory stop of N.H. was lawful.” Id. at 516. Finding that N.H. was lawfully being detained when he acted, the Fifth DCA affirmed the denial of N.H’s JOA motion. Id. at 516-17.

Thus, it was clear that at the time of the conduct giving rise to the violation of §843.02 (interfering with an officer, in N.H.’s case), N.H. was both subject to being lawfully detained, and was lawfully detained. In the Appellant’s case, since he was neither subject to being lawfully detained at the time he was allegedly blocking Officer P.’s view, nor lawfully detained thereafter, he did not violate §843.02.

It is also important to note that Officer P. testified at the Violation of Probation hearing that the Appellant made threatening statements, and was detained (and arrested) for making threats. R II at 196, 231-32. However, at trial, although there was testimony about the Appellant’s “two the head” statement, there was no claim that he was arrested for that. (As noted above, in Section B, supra, the State alleged, inaccurately, and without the support of any record evidence, that the Appellant made threats, which this Court must legally disregard, on the basis noted therein.)
Since, legally, the comment “I hope you catch two to the head” is not a threat, there was no lawful authority to detain the Appellant for that comment. Thus, the Appellant was not legally detained at the time of the alleged offense, and, again there is no factual support for finding second aspect of the definition of “lawful duty,” – a lawful detainer – to exist.

The next inapplicable case cited by the State is H.A.P. v. State, 834 So.2d 237 (Fla. 3d DCA 2002). H.A.P., appealing the denial of a JOA motion, preceding his adjudication of delinquency for a violation of §843.02, was present at the scene during the execution of a search warrant, shouting profanities, refused instructions to leave, and delayed the execution of the search warrant. Id. at 237-38. The appellate court found H.A.P. was properly ordered to move, as his presence, directly in line with the door of the residence to be searched, placed him in the potential line of fire, placing his life and that of about 20 officers in jeopardy, and his presence and refusal delayed the execution of the search warrant – a lawful duty. Id. at 239. Conversely, the Appellant was not lawfully ordered to move. He was on a public sidewalk, was endangering no one, and had a right to be there.

The State claims H.A.P. is persuasive because the defendant there was arrested for a combination of actions and words, not just speech. Answer Brief at 15, H.A.P. at 238-39. However, the facts in H.A,P. And the instant case are far different, and the result in H.A.P. neither controls, nor informs, as to the instant case. First, and foremost, the execution of a search warrant is the execution of legal process, the first definition of “lawful duty.” In the Appellant’s case, unlike H.A.P.’s, it is undisputed that there was no execution of legal process ongoing at the time of the subject conduct. Second, as discussed infra, the Appellant’s “actions” were constitutionally protected speech, in which he had the right to engage. Finally, the Appellant, unlike H.A.P. did leave, and did not delay anything. H.A.P. does not change the conclusion that Officer P. was not engaged in any “lawful duty” at the time of the subject conduct.

As these are the sole authorities to which the State points as supporting its “lawful duty” argument, this Court can and should find that the State failed to meet its burden of proving Officer P. was engaged in the execution of a lawful duty, and the denial of the JOA motion should be reversed, as error. This Court should so find, reverse the trial court order denying the judgment of acquittal, vacate the conviction, and remand with directions that the motion be granted, and the case discharged.

2. The Appellant’s Behavior Was Constitutionally Protected Speech
In its Answer Brief, the State claims that the Appellant’s behavior was not mere speech – which it concedes would have been constitutionally protected – but also included conduct, taking it outside the ambit of the First Amendment. In so arguing, the State fails to recognize that symbolic actions are also considered protected speech. The trial evidence was clear, the State had merely proven constitutionally protected speech on the Appellant’s part.

The first amendment shields not only verbal and written messages, purely communicative, but also conduct designed to express and convey ideas. See, e. g., Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); See Nimmer, The Meaning of Symbolic Speech Under the First Amendment, 21 U.C.L.A. L.Rev. 29 (1973). It prohibits not only statutory abridgment but all governmental action including judicial action that restrains free expression. See New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); American Federation of Labor v. Swing, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855 (1941). (Emphasis added.)
New Orleans Steamship Assoc. et al. v. General Longshore Workers, et. al., 626 F.2d 455, 462 (5th Cir. 1980).

This is bedrock constitutional law, that “[t]he First Amendment affords protection to symbolic or expressive conduct as well as to actual speech.” Virginia v. Black, 123 S.Ct. 1536, 1547 (2003). (Emphasis added.) This principle was applied to cross burning in Black. “The hallmark of the protection of free speech is to allow ‘free trade in ideas’ – even ideas that the overwhelming majority of people might find distasteful or discomforting.” Id. This is also the rationale forming the basis of the well settled principle that flag burning, too, although conduct, is symbolic, protected speech. See., e.g. Texas v. Johnson, 109 S.Ct. 2533 (1989).

The symbolic speech definition also applies to picketing, or walking back and forth at a given location, to express ideas and opinions. See e.g. Snyder v. Phelps, 131 S.Ct 1207 (2011) (upholding the right of the members of the Westboro Baptist Church to engage in the conduct of picketing a funeral as constitutionally protected symbolic speech under the First Amendment, while noting the offensive and distasteful subject matter and language involved). This exactly describes the Appellant’s behavior in the instant case. At the VOP hearing, Officer Pitts describes the Appellant’s behavior as “protesting.” RII at 187. This is constitutionally protected symbolic speech, contrary to the State’s contention.
ISSUE II – The Trial Court Erred by Denying Both Motions to Continue the Trial

A. State’s Position
The State argues that the factors listed in McKay v. State, 504 So.2d 1280 (Fla. 1st DCA 1986) support the trial court’s denial of both continuance motions (that of the undersigned counsel, and that of trial counsel). Respectfully, the State’s inaccurate and unsubstantiated factual allegations render their analysis of the McKay factors unpersuasive, and negates their conclusion as to the application of those factors to the instant case.

Appellant notes that the State agrees that the application of McKay to the instant case sets forth the basis for the analysis of the issue of whether the trial court abused its discretion in denying both continuance motions. The McKay factors have been fully analyzed in the Initial Brief, demonstrating the abuse of discretion by the trial court, as its findings of fact were, respectfully, clearly inaccurate, resulting in erroneous analysis and application of the factors, causing a denial of the continuance motions in error.

B. Argument in Rebuttal
1. Emergency Motion to Continue by Undersigned Counsel
The State’s analysis of time available for preparation fails to address the key issue – preparation time available to the undersigned, as substitute counsel – instead focusing on preparation time available to trial counsel, and undersigned counsel’s anticipated 2 month unavailability. It is undisputed that the undersigned counsel has only been retained December 11, a mere two business days before the scheduled start of the trial. Clearly, there was not adequate time for preparation. As to adequacy of discovery, it is incorrect to claim discovery was complete, given the discovery election made less than 24 hours before trial commencement. The State’s conclusion is unsupported by the facts, and entirely speculative. No discovery response was produced or filed by the State. It is unknown what other information mandated by Rule 3.220, Fla. R. Crim. P. existed. That the defense had most of the items actually used by the State at trial, does not change this fact, nor, ignoring the purpose of discovery, make non-provided discovery somehow “complete.”

As to the complexity of the case, the trial court’s finding that the case was “simple in the law,” was, contrary to the State’s position, erroneous. A review of the briefs confirms this. The interplay of the First Amendment, as applied to words, and as applied to actions constituting symbolic speech, is complex. It has to be dealt with delicately and appropriately at voir dire, in argument, and at cross examination. There is clearly likelihood of juror confusion and overreaction to provocative and socially offense speech. Special voir dire should have been prepared, and special jury instructions, prepared in writing, as well. (See infra.) The law here was complex, and the trial court erroneously found to the contrary.

As to the adequacy of the trial counsel, whom the Appellant’s firm had been retained to replace, this Court’s review should begin with the opinion of the defendant, which is that trial counsel was not adequate. This is also demonstrated by the record. It is clear that trial counsel – whose firm specializes in family law – failed to preserve denials of cause challenges by exhausting peremptory challenges, and then requesting additional peremptory challenges, as required. This is not adequate representation. Failing to have written special jury instructions prepared on any issue in this case, at any time, is also not adequate representation. The fact that trial counsel lost the Appellant’s first case and lost the violation of probation hearing, does not transform him into adequate counsel. Finally, being forced to go to trial without the VOP hearing transcript (the equivalent of deposition transcripts in the instant misdemeanor case), is also not adequate representation. The State’s argument, and the trial court’s finding to the contrary, are belied by the record.

As to the question of prejudice, were the undersigned counsel’s continuance motion denied, the trial court, and the State, ignore the very nature of prejudice – an action or consequence in denigration of a right or privilege. Denial of counsel of the Appellant’s choice is clear prejudice, in denigration and denial of his rights. Notwithstanding whether trial counsel should have been prepared, it is clear, as he stated on the record, and in his motions to continue, he was not prepared. Having to go to trial with counsel other than one of one’s own choosing, who is admittedly unprepared, is clearly prejudicial to the Appellant.

As to prejudice to the State, and the administration of justice, the State’s arguments in response also fall short of the mark. That the State was ready for trial, and had its witnesses available, is simply not prejudice. All of the same witnesses would be again available, were the continuance granted, and all the trial preparation had already been accomplished. A continuance would have changed none of this. The State’s argument that a continuance would have prejudiced the State, and the trial court’s implicit finding to the contrary is error. Any prejudice to the administration of justice was, ultimately the result of the unnecessary delay in the requested emergency continuance motion until the morning of trial. Had the trial court wished to entertain the motion, without the risk of squandering time and resources, it had the clear opportunity to do so.

2. Trial Counsel’s Continuance Motion
The State admits trial counsel did not have the opportunity to argue his motion for continuance. The State, without factual basis, characterizes trial counsel’s assertion that he was too ill to properly prepare for the trial as disingenuous. It also does not change the fact that, as discussed above, and in the initial brief, trial counsel was actually and admittedly unprepared. Both the denial of the continuance unargued, and the erroneous McKay findings thereon, are an abuse of discretion.

The State argues that the discussion of the McKay factors engaged in by the trial court during its consideration of undersigned’s continuance satisfy the requirement of consideration as to trial counsel’s distinct motion. It cannot, as Due Process requires the movant (trial counsel) be heard on his motion. In addition to the factual errors in the trial court’s analysis, the very fact of the denial without argument, shows the ruling to be arbitrary and an abuse of discretion.

CONCLUSION
The Appellant engaged in time-honored, constitutionally protected, vulgar and socially offensive actual and symbolic speech. This speech did not obstruct any officer at any time. Officer P. was not engaged in a legal duty at the time of the subject behavior. The JOA was denied in error. As to Issue II, absent intervention by this Court, the Appellant will never have the opportunity to have this case tried by adequately prepared trial counsel of his choice. That is the very definition of prejudice. The trial court’s conclusion as to the application of the McKay factors to both motions to continue is plainly erroneous and an abuse of discretion. It, too, should be reversed as error.